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Illinois Rep. Elaine Nekritz, has sponsored a new bill that would amend the draconian measures found in the state’s current Eavesdropping law. SB 1808 amends the Illinois Criminal Code concerning eavesdropping exemptions and provides that a person may record the conversation of a law enforcement officer who is performing a public duty in a public place and any other person who is having a conversation with that law enforcement officer if the conversation is at a volume audible to the unassisted ear of the person who is making the recording.

The bill also defines “public place” and provides that if a recorded conversation authorized under this exemption is used by a complainant as part of the evidence of misconduct against a police officer and is found to have been intentionally altered by or at the direction of the complainant to inaccurately reflect the incident at issue, it must be presented to the appropriate State’s Attorney for a determination of prosecution.

Current Illinois law permits videotaping officers in public but criminalizes the interception of oral communication (audio recording) without the consent of all parties. A conviction on such a felony charge could result in a 15 year jail sentence. Some recent prosecutions under the current law have resulted in acquittals and in others the trial court judge found the statute to be unconstitutional. Supporters of the bill believe it strikes the right balance between the reasonable expectation of privacy and the First Amendment by allowing citizens to audio record law enforcement officers performing public duties in public places.

In a similar case, Glik v. Cunniffe, the United States Court of Appeal for the First Circuit found the public and the press have a “co-extensive” right to record officers in public places. In another case, Sharp v Baltimore City Police, the United States Department of Justice filed a Statement of Interest in support of such recordings. The ACLU has challenged the constitutionality of the Illinois Eavesdropping statute in ACLU v Alvarez and a decision is expected by the Seventh Circuit any day. TheChicago Police Department recently announced that it would not seek to enforce the law during the NATO Summit scheduled for later this month.

NPPA submitted Comments in support of a previous bill that recently failed in the House by 15 votes. Not surprisingly police organizations opposed that measure citing fears that people might edit or alter the recordings to use as evidence of officer misconduct. The new bill addresses those concerns. According to Rep. Nekritz, the new bill “would address some high-profile prosecutions that occurred under the existing eavesdropping law of citizens who have done nothing more but take out their cell phones and record a police officer performing public duty.”

The State Journal-Register, The Southern, Chicago Sun-Times, and Chicago Tribune have all written editorials in support of this measure and it is also supported by the Illinois State Bar Association, Illinois Press Association and the American Civil Liberties Union. The bill has already passed out of the Houses Judiciary Committee on Civil Law and will be brought to the floor sometime in the next few weeks.